Telangana High Court
Deshetti Narayana Rao vs Zarupula Ramdas on 25 January, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.3617 OF 2023
ORDER:
Heard Mr. Nimma Narayana, learned counsel for the petitioners
and Mr. Jogram Tejavath, learned counsel for the respondent.
2. The present Civil Revision Petition is filed challenging the
order dated 10.11.2023 in O.S. No.134 of 2022 (Old O.S. No.08 of
2017) passed by the Principal District Judge, Hanumakonda, holding
that the memorandum of deposit of title deed dated 14.04.2016
referred to as Ex.A1 in the evidence affidavit of PW.1 is inadmissible
in evidence and cannot be exhibited and cannot be received in
evidence as it is not a registered document though it is compulsorily
registerable one.
3. The petitioners herein are the plaintiffs in O.S. No.134 of
2022 pending on the file of Principal District Judge, Hanumakonda,
while the respondent herein is the defendant.
4. For the sake of convenience, the parties will be hereinafter
called as arrayed in O.S. No.134 of 2022.
5. Plaintiffs filed the aforesaid suit (O.S. No.134 of 2022)
against the defendant for preliminary decree for recovery of money
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and the mortgaged property and final decree for sale of the mortgaged
property.
i) In the plaint, it is averred by the plaintiffs that the defendant
took an amount of Rs.55.00 lakhs from them as loan agreeing to repay
the same with interest @ 2% per month thereon within six (06)
months and offered the schedule property as security for the said loan.
After receipt of the said amount, the defendant created equitable
mortgage of the suit schedule property by way of deposit of title deeds
and evidencing the same, the defendant had executed a Memorandum
of Deposit of Title Deeds on 14.04.2016 in favour of the plaintiffs.
6. When the aforesaid suit was coming for trial, plaintiff No.1
had filed his affidavit in lieu of chief-examination as PW.1. In the
said affidavit, the plaintiffs exhibited the said original memorandum
of deposit of title deeds, dated 14.04.2016 as Ex.A1, for which learned
counsel for the defendant objected on the ground that the said
document requires registration as it was executed on the same day
evidencing creation of equitable mortgage by deposit of title deeds as
security of the loan transaction and prayed the trial Court to decide the
said issue before proceeding with further. On the other hand, learned
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counsel for the plaintiffs contended that the said document does not
require registration.
7. Learned counsel for the defendant objected for marking the
aforesaid document as an exhibit on behalf of the plaintiff and
requested the trial Court to decide the said issue as a preliminary issue
before proceeding with the matter further. The trial Court after
hearing both sides on the said objection, passed the impugned order
holding that the memorandum of deposit of title deed dated
14.04.2016 referred to as Ex.A1 in the evidence affidavit of PW.1 is
inadmissible in evidence, cannot be exhibited and received in
evidence as it is not a registered document and it requires registration.
8. Challenging the said order dated 10.11.2023 passed by the
trial Court in O.S. No.134 of 2022 the plaintiffs filed the present
revision on the following grounds:
i) The subject document has already been impounded and,
therefore, the objection with regard to insufficiency of stamp duty
cannot be sustained;
ii) The only objection raised is with regard to want of
registration which could have been postponed as per the principle laid
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down by the Hon'ble Supreme Court in Bipin Shantilal Panchal v.
State of Gujarat 1;
iii) The trial Court committed material irregularity while
exercising its power vested with it under law; and
iv) The trial Court passed the impugned order based on
misconception of law and facts;
9. On the other hand, learned counsel for the defendant would
submit that the defendant did not take any amount much less the
amount alleged in the suit from the plaintiffs and did not execute the
alleged mortgage document. Since the said document is not registered
one, it is inadmissible in evidence and, therefore, the same cannot be
received in evidence. He would further submit that the impugned
order passed by trial Court is reasoned and well-founded and there is
no error in it.
10. As discussed above, plaintiffs have filed the aforesaid suit
vide O.S. No.134 of 2022 against the defendant for recovery of money
basing on the subject memorandum of deposit of title deed.
Admittedly, the said memorandum of deposit of title deed is an
unregistered document. Plaintiff No.1 had filed affidavit in-lieu of his
. AIR 2001 SC 1158
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chief-examination (PW.1) and sought to mark the said memorandum
of deposit of title deed, dated 14.04.2016 as an exhibit. The defendant
objected for marking of the same on the ground that it is not a
registered document and, therefore, the same is inadmissible in
evidence.
11. It is the specific contention of the plaintiffs that it was
executed by the defendant only for collateral purpose and, therefore, it
need not be registered. Whereas, it is the specific contention of the
defendant of the plaintiffs have filed the aforesaid suit basing on the
said memorandum of deposit of title deed, therefore, registration of
the said document is mandatory. Both the parties have relied upon
some judgments referred to in the impugned order.
12. Referring to the principle laid down in the aforesaid
judgments, the trial Court gave a specific finding that objection
regarding inadmissibility of memorandum of deposit of title deed for
want of registration has to be decided before proceeding further and
that the subject memorandum of deposit of title deed requires
registration as it was executed on the day of extending loan
evidencing creation of equitable mortgage by deposit of title deed of
securing loan transaction. Therefore, the said document is
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inadmissible in evidence and cannot be exhibited and cannot be
received in evidence as it is not a registered document though it is
compulsorily registerable document.
13. Learned counsel for the plaintiffs relied upon the principle
laid down by the Apex Court in Bipin Shantilal Panchal1, wherein it
was held as follows:
"14. When so recast, the practice which can be a
better substitute is this: Whenever an objection is
raised during evidence taking stage regarding the
admissibility of any material or item of oral
evidence the trial court can make a note of such
objection and mark the objected document
tentatively as an exhibit in the case (or record the
objected part of the oral evidence) subject to such
objections to be decided at the last stage in the
final judgment. If the court finds at the final stage
that the objection so raised is sustainable the judge
or magistrate can keep such evidence excluded
from consideration. In our view there is no
illegality in adopting such a course. (However, we
make it clear that if the objection relates to
deficiency of stamp duty of a document the court
has to decide the objection before proceeding
further. For all other objections the procedure
suggested above can be followed.)
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15. The above procedure, if followed, will have
two advantages. First is that the time in the trial
court, during evidence taking stage, would not be
wasted on account of raising such objections and
the court can continue to examine the witnesses.
The witnesses need not wait for long hours, if not
days. Second is that the superior court, when the
same objection is re-canvassed and reconsidered in
appeal or revision against the final judgment of the
trial court, can determine the correctness of the
view taken by the trial court regarding that
objection, without bothering to remit the case to
the trial court again for fresh disposal. We may
also point out that this measure would not cause
any prejudice to the parties to the litigation and
would not add to their misery or expenses.
16. We, therefore, make the above as a
procedure to be followed by the trial courts
whenever an objection is raised regarding the
admissibility of any material or any item of oral
evidence."
i) The plaintiffs have also relied upon the principle laid down
by this Court in Sheikh Qutubuddin v. Goli Vishwanatham 2,
wherein a learned Judge of this Court referring to Bipin Shantilal
Panchal1 and other judgments held that if an objection regarding
. 2014 (2) ALD 329
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maintainability of a document is raised on the ground that there was
deficiency of stamp duty, the Court has to decide the objection before
proceeding further. The said principle was reiterated in Ahmed
Abdul Raheem v. Mohd. Abdul Aziz 3.
14. The defendant has relied upon the principle laid down by
the Delhi High Court in Sh. Ishar Dass Malhotra v. Sh. Dhanwant
Singh 4 and the combined High Court of Andhra Pradesh at Hyderabad
in Ahmed Abdul Raheem3.
15. In the subject memorandum of deposit of title deed, dated
14.04.2016, it is specifically mentioned that the defendant is the
absolute owner and possessor of the subject property. He has
delivered and deposited the said title deed and the link document in
favour of the plaintiffs herein by creating equitable mortgage of the
aforesaid property for securing the repayment of Rs.55.00 lakhs which
he borrowed that day with interest thereon @ 2% per month. He also
agreed to pay the said amount together with interest within six (06)
months. The said document was executed on 14.04.2016 and the said
amount was paid to the defendant by the plaintiffs on the same day. It
was executed only on fifty rupee non-judicial stamp paper.
. 2012 (2) ALD 208
. AIR 1985 Delhi 83
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Admittedly, it is not a registered document. Therefore, the said
document has to be registered necessarily and registration of the said
document is compulsory in terms of Section - 58(a) of the Transfer of
Property Act, 1882 and the provisions of the Indian Stamp Act, 1899.
Thus, the contention of the plaintiffs that it was executed only for
collateral purpose and, therefore, registration is not compulsory cannot
be accepted.
16. The defendant has raised an objection with regard to
marking of subject memorandum of deposit of title deed, dated
14.04.2016 on the ground that it is inadmissible since it is an
unregistered document, the said aspect has to be decided first before
proceeding further.
17. On consideration of the said aspects, more particularly, the
provisions of the Transfer of Property Act, 1882 and the Indian Stamp
Act, 1899 and the principle laid down by the Apex Court and other
High Courts in the aforesaid judgments, vide impugned order, dated
10.11.2023, trial Court held that the memorandum of deposit of title
deed dated 14.04.2016 is inadmissible in evidence. The same cannot
be exhibited and cannot be received in evidence as it is not a
registered document though it is compulsorily registerable document.
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The trial Court rightly held that the said issue has to be decided first
and then proceed further in the matter. The said finding of the trial
Court is a reasoned one and well-founded. It does not require any
interference by this Court in exercise of its supervisory powers under
Article - 227 of the Constitution of India. Thus, the revision fails and
the same is liable to be dismissed.
18. The present Civil Revision Petition is accordingly
dismissed confirming the order dated 10.11.2023 in O.S. No.134 of
2022 (Old O.S. No.08 of 2017) passed by the Principal District Judge,
Hanumakonda. In the circumstances of the case, there shall be no
order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the
revision shall stand closed.
_________________
K. LAKSHMAN, J
25th January, 2024
Mgr
